Weinberger v. Metropolitan Traction Co., 71 N.Y.S. 289

Weinberger v. Metropolitan Traction Co.

71 N.Y.S. 289 | N.Y. App. Div. | 1901

Laughlin, J. :

Owing to the reference the motion to substitute the street railway company for the traction company herein has been pending undetermined almost two years. This inexcusable delay of the trial of the issues and unjustifiable expense to the litigants warrants the court in again expressing its disapproval of references to determine controverted questions of fact arising upon motion, except very exceptional cases, where the facts are complicated, and it is manifest *243that the truth cannot be ascertained with reasonable certainty without an examination of the witnesses. We think the case could and should have been disposed of without a reference. If the plaintiff’s affidavit did not sufficiently present the facts his motion might have been denied without prejudice to a renewal thereof, and if those presented by defendant were insufficient the motion might have been continued and an opportunity afforded to supplement them.

As the Statute of Limitations would be a bar to an action now commenced against the railway company, we think justice to the plaintiff, notwithstanding the gross laches of his former attorneys, requires that he be permitted to proceed to a hearing upon the merits of his motion for a substitution. The plaintiff, however, should have made his motion before defendant, acting upon the default, paid the referee’s fees. The order, therefore, should be modified by requiring that defendant be reimbursed the amount of the referee’s fees and ten dollars costs of the motion, in addition to the twenty-five dollars allowed by the Special Term, and by further providing that ten dollars costs of this appeal and the disbursements thereon, be awarded to defendant, to abide the final award of costs in the action.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, J J., concurred.

Order modified as directed in opinion, with ten dollars costs and disbursements to defendant, to abide the final award of costs in the action.